Supreme Court Justice Benjamin N. Cardozo earned fame not only for his judicial decisions but also for the lectures and books that explained the lawmaking role of judges. He was known as a kind man in his private life but a tough, ambitious lawyer in his professional career.
Born on May 24, 1870, just after the Civil War, Cardozo’s parents were Rebecca Washington Nathan and Albert Jacob Cardozo. His grandparents, Sara Seixas and Isaac Mendes Seixas Nation on his mother’s side and Ellen Hart and Michael H. Cardozo on his father’s side, were affiliated with Manhattan’s Congregation Shearith Israel. His entire life, Cardozo was proud that his ancestors arrived in America before the American Revolution. Cardozo had a twin sister, Emily as well as four other siblings. Cardozo and his older sister, Nellie, were close, she helping to raise him when he was young. He was named for his uncle, Benjamin Nathan, who was murdered the year he was born in a case that is still unsolved.
Cardozo was part of a distinctive, well-established Sephardic family. His ancestors fled from the Iberian Peninsula during the Inquisition. When he was born, his father, Albert was at the height of his career and the family was well-off, living just off of Fifth Avenue. His parents had connections with the wealthy and politically powerful in New York City. Albert Cardozo served as a judge starting in 1864. In 1868, he began serving as a Justice of the Supreme Court of New York County. His mother, Rebecca, was of concern among her family as she was said to be “delicate mental condition.” A scandal ensued involving the Erie Railroad and some of the decisions handed down by Cardozo’s father were called into question. This eventually led to his father’s resignation as a judge, an action that the family felt damaged the family name. Albert Cardozo returned to practicing law after leaving the bench.
Cardozo entered Columbia University at the age of 15 and entered Columbia Law School In 1889. Because of the actions of his father which he felt damaged the family name, Cardozo wanted to enter a profession that would restore the family reputation and take care of his family. When he entered Columbia Law School, the program only required a two-year program of study but was extended to three years while he was a student. He left law school without a degree but passed the bar in 1891. He and his brother opened a law practice in New York City until he was elected to a 14-year term on the New York Supreme Court. Cardozo took his seat on the bench on January 1, 1914.
Court of Appeals Appointment
Under the Amendment of 1899, Cardozo was designated to the New York Court of Appeals in February 1914. It is believed he is the first Jewish man to serve on the Court of Appeals. From the beginning, he earned a reputation as an excellent judge. He supported the modernization of the law and advocated the role of judges as lawmakers. In January 1917, after the resignation of Samuel Seabury, Cardozo was appointed to a regular seat on the Court of Appeals and elected to a seat on the court in November 1917. He was elected to a 14-year term as Chief Judge in 1926.
Supreme Court Appointment
Cardozo was appointed to the United States Supreme Court by President Herbert Hoover on March 7, 1932, replacing Oliver Wendell Holmes, a judge he was compared to throughout his life. It was one of the few appointments to the Supreme Court not motivated by partisanship or politics but based on Cardozo’s contribution to the law. It is believed; however, that Hoover was running against Franklin D. Roosevelt so there may have been some political calculation in his appointment. The Senate unanimously confirmed Cardozo on February 24, and he was confirmed on March 1, 1932. According to reports, Justice Harlan Fiske Stone had suggested that Calvin Coolidge name Cardozo to the court rather than Stone himself. Brandels, Stone, and Cardozo made up the liberal faction of the court with the three known as the Three Musketeers. Cardozo strongly supported the Tenth Amendment while a Supreme Court Justice, which states that only powers delegated to it by the Constitution fall under the federal government with all other powers falling to the states.
During his time on the bench, the forces of lawmaking were the legislative and executive branch, but courts also responded to societal changes. By the end of the 19th century, a method of legal thought known as legal formalism denied creative roles in judges. Following in Holmes footsteps, Cardozo fought legal formalism, a position also held by Roscoe Pound. He helped to refine elements of negligence law and expanded governmental power in the regulation of economy as part of constitutional law. While sitting on the bench, he lectured and wrote about the importance of lawmaking in the judicial branch. Cardozo was not a revolutionary, however. He believed that social change in democracy lay with the executive and legislative branch. Although fairness was extremely important to him, he did not believe that judges could simply do what they wanted only because it was “fair.” He believed that judges had to use history, precedent and the powers of other branches of the government when making a decision.
Supreme Court Cases
Some of the cases decided during Cardozo’s time on the bench include the determination that an all-white Democratic party was unconstitutional as well as the invalidation of poultry regulations that were outside the commerce clause power. Several of his decisions dealt with the power of the commerce clause, including a dissenting opinion in Carter v. Carter Coal Company about the scope of the clause. In Palko v. Connecticut, the court decided that the due process clause incorporated rights that were implied in the concept of liberty.
New Deal Initiatives
As a member of the Supreme Court, Cardozo supported President Franklin Roosevelt’s New Deal initiatives, including the social security program. As part of the court, he helped determine that unemployment compensation and social security were constitutional and that social security was not a contributory program. Experts have said that Cardozo often misrepresented legal doctrines in his legal work with the idea of serving the larger good. In 1923, Cardozo co-founded the American Law Institute. He also served on the American Jewish Committee board and received honorary degrees from several institutions.
Cardozo remained very close to his family throughout his life. He never married and repaid his older sister, Nellie, for taking care of him when he was young by taking care of her later in life. He felt strongly about duty, honor, and individual responsibility. Some of those beliefs were evident in some of his judicial decisions. People who knew him said that he was well-bred and well-educated. He was also tough, ambitious and a first-rate law practitioner. Late in his life, he no longer practiced the Jewish faith and often called himself an agnostic. He had a heart attack in 1937 and, in early 1938, he suffered a stroke, dying on July 9, 1938. He was buried in Beth Olam Cemetery in Queens. Many transitions occurred at the time of his death as other justices retired or died in the late 1930s and 1940s as well.
Because Cardozo was a member of the Spanish and Portuguese Jewish community, Hispanic organizations have recently begun questioning whether he should be considered the first Hispanic justice. Cardozo was a humble man, often describing himself as plodding but that there is joy in plodding as it can lead to “courage, fidelity, and industry.”